Energy Secretary Samuel Bodman, right, looks on as Environmental Protection Agency (EPA) Administrator Stephen Johnson answers a question during a news conference at the Energy Department in Washington on ... more

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Behind EPA's rejection of state emission rules

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Newly released documents show that Environmental Protection Agency staff members made a strong case that California should be allowed to proceed with its first-in-the-nation greenhouse gas regulations - arguments that the agency's chief, Stephen Johnson, ultimately overruled.

The documents were part of a PowerPoint presentation that the EPA's legal and technical staff made to Johnson before he announced in December that he was rejecting efforts by California and 18 other states to enforce the tough new rules for all cars and trucks. The agency, after dragging its heels for weeks, allowed California Sen. Barbara Boxer's staff to see the documents this week.

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That Johnson overruled his staff's advice was widely reported last month. But the documents reveal new details about the agency's internal decision-making process.

Johnson will be on the hot seat to explain his decision Thursday when he appears before Boxer's Environment and Public Works Committee.

In the presentation last year, EPA staffers wrote that California could clearly demonstrate "compelling and extraordinary conditions" - the legal definition under the Clean Air Act that requires EPA to approve regulations set by the state.

"California continues to have compelling and extraordinary conditions in general (geography, climatic, human and motor vehicle populations - many such conditions are vulnerable to climate change conditions) as confirmed by several recent EPA decisions," the staff wrote.

The staffers also told Johnson that climate scientists at the U.N. Intergovernmental Panel on Climate Change had concluded California was at greater risk from the impacts of global warming than other states, which could justify the tougher rules.

"California exhibits a greater number of key impact concerns than other regions," they wrote. The staffers listed all the risks that could prove the state's case - from potential water shortages to rising sea levels affecting coastal communities to health threats from air pollution.

"Wildfires are increasing," which could "generate particulates that can exacerbate health risk," they wrote. "California has the greatest variety of ecosystems in the U.S.; and the most threatened and endangered species in the continental U.S."

EPA spokesman Jonathan Shradar insisted Wednesday that Johnson had not overruled his staff. He said the EPA chief is not bound by the opinions of his staff.

"The Clean Air Act laid out that the decision is the administrator's alone," Shradar said. "The staff provides for the administrator a wide range of options for his decision. He took those options, public comments and others into account. ... He felt it was the right decision."

But lawmakers suggested that the efforts by top EPA officials to stonewall the release of the documents showed that they were a "smoking gun" that reinforced California's case.

Boxer first requested the documents last month. A Washington Post story published Dec. 20 quoted staffers describing the documents, but the agency spent weeks refusing to release them. Last Friday the EPA turned over the PowerPoint presentation to Boxer's Environment and Public Works Committee, but many of the pages were almost entirely whited out.

When Boxer raised an objection, the EPA agreed to let staffers see them under tight restrictions: They could not photocopy them and they had to read them under the watchful eye of EPA lawyers. So Boxer's staff copied them by hand and released them Wednesday to a room full of reporters.

"This information belongs to the American people," Boxer said. "It's shameful that we've had to go through such a torturous process to get it."

The EPA's Shradar said the agency believed that some of the documents were protected by attorney-client privilege. He said the agency was worried about their release given the lawsuit California, other states and environmental groups have filed to overturn Johnson's decision.

"The point is that the folks under Johnson take the same point of view as the state of California," California Attorney General Jerry Brown said. "We can allege there is abuse of discretion. Abuse of discretion occurs certainly when (Johnson) just decides on a whim and doesn't have the support of the professional opinion of his own agency."

The documents also included the EPA's lawyers' blunt assessment that Johnson's decision would be overturned if he denied the state's request.

In a PowerPoint slide titled "If We Grant" the waiver, the staffers predicted a "likely suit by manufacturers," meaning the automakers, who have long opposed California's rules. They concluded: "EPA is almost certain to win such a suit."

The next slide was labeled "If We Deny" the waiver, which predicted that there would be an "almost certain lawsuit by California." The agency's lawyers wrote: EPA is "likely to lose suit."

Sierra Club attorney David Bookbinder, who has been involved in recent climate cases in the states and at the U.S. Supreme Court, said the revelations could prove a crucial advantage in California's case.

"Judges are intelligent people and they're going to look at this and they're going to understand that Stephen Johnson had absolutely no basis for overturning the carefully considered opinion of his staff," Bookbinder said.

When Johnson rejected California's request, he said new federal rules, passed by Congress and signed by President Bush, that raised fuel economy standards to 35 mpg by 2020 made the state's request unnecessary. He also argued that the state did not show "compelling and extraordinary conditions" because global warming is an international, not a regional, problem.

While Johnson's view has been backed up by President Bush, he's facing an outcry from the states. On Wednesday 13 governors, including California's Arnold Schwarzenegger, released a letter to Johnson criticizing his decision.

"Your decision to deny California its waiver ignores federal law and the realities of climate change," the governors wrote.

The decision by Johnson will shape how the nation addresses climate change. The new fuel economy standards cited by Johnson will require cars and trucks to get 35 miles per gallon by 2020. But California's rules would require fuel efficiency of 44 miles per gallon by 2020. California officials estimate the state rules would cut greenhouse gas emissions 74 percent more than federal law.

Boxer said she and Rep. Henry Waxman, D-Los Angeles, the chairman of the House Oversight and Government Reform Committee, plan a thorough probe of how Johnson made his decision. EPA has said it will release e-mails next month about its contacts with the White House. Boxer said she wants to see what role industry played as well.

"You have to raise the question: Who is Mr. Johnson listening to? Who is he listening to besides the advice of his well-qualified staff?" she said. Her conclusion: "Special interests."

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